United States District Court, S.D. Illinois
MEMORANDUM AND ORDER
R. Herndon United States District Judge
currently incarcerated in Menard Correctional Center, brings
this habeas corpus action pursuant to 28 U.S.C. § 2254
to challenge his 1993 McLean County conviction. (Doc. 1). The
petition was filed on December 21, 2016. (Doc. 1). A jury
convicted petitioner of 3 counts felony murder, 4 counts
armed robbery,  1 count of aiding and abetting, and 1
count of perjury. (Doc. 1, p. 1). Petitioner was sentenced to
natural life in prison on May 3, 1993. (Doc. 1-1, p. 16)
(Doc. 1, p. 1).
appealed his conviction to the Illinois Appellate Court and
then subsequently to the Illinois Supreme Court. (Doc. 1, pp.
2-3). The conviction was affirmed. (Doc. 1, p. 3). Petitioner
then filed an action seeking post-conviction relief in McLean
County on December 22, 1994. Id. He filed a
subsequent post- conviction action on December 27, 1999.
(Doc. 1, p. 4). Petitioner also alleges that he filed a third
action in state court, although he does not provide the case
number or the date of filing. (Doc. 1, p. 5).
the petition is silent on this point, it appears that
petitioner has brought several actions for habeas relief in
Federal Court. In 1995, petitioner filed a habeas action in
this Court, Case No. 95-813, which was ultimately transferred
to the Central District. Presumably, that case became 96-1023
in that court. (See Central District, Case No.
96-1023, Doc. 8). In No. 96-1023, the court dismissed the
petition, after requiring counsel for petitioner to show
cause why he had not filed a reply brief. (C.D. Ill. Case No.
96-1023, Doc. 23). Petitioner alludes to this circumstance in
the current filing. (Doc. 1, p. 7). After that case was
dismissed, Petitioner appealed. Wilson v.
Washington, 138 F.3d 647 (7th Cir. 1998). The Seventh
Circuit denied that appeal, on which petitioner also
proceeded with counsel, on February 25, 1998. Id.
Petitioner's writ of certiorari to the Supreme Court was
denied. (U.S. No. 97-9595). Petitioner filed another case,
No. 99-1298 in the district court, which was dismissed as a
second or successive petition. In 2008, petitioner asked the
Seventh Circuit for leave to file a second or successive
petition in case No. 08-3476. The Seventh Circuit denied
leave. (7th Cir. No. 08-3476, Doc. 4) More recently,
petitioner filed case No. 16-1019. In that case, petitioner
used a form appropriate for filing a § 2-1401 action
pursuant to Illinois state law. The Court dismissed that
case, but granted leave to petitioner to file a federal
habeas case. (Case no. 16-1019, Doc. 7). That Order did not
address the issue of petitioner's previously filed habeas
has now brought an action using the correct federal form. His
“Notice” at Doc. 3 explains that he tried to file
his previous action in state court, but that Illinois Circuit
County Judge Scott Drazewski denied it and informed
petitioner that he was barred from filing any more petitions
in state court. (Doc. 3). Therefore, Petitioner has refiled
in this Court. (Doc. 3).
also filed a “Response” to the Order denying
petitioner IFP, and a “Notice, ” in which he asks
for certain relief due to his petition being dismissed for
failure to pay the filing fee. (Doc. 9) (Doc. 10). This
matter has not been dismissed for failure to pay a filing
fee. The filing fee for this matter is $5.00, which the Court
received on January 18, 2017. As the Court has received the
money, it denied petitioner's motion to proceed in forma
pauperis because Petitioner had no need for that relief, but
it did not dismiss this action. (Doc. 8).
it has come to the Court's attention that Jacqueline
Lashbrook, not Jeff Hutchinson, is current warden of Menard.
Lashbrook is now the proper defendant in this action pursuant
to Rule 2(a) of the Rules Governing § 2254 Cases in the
United States District Courts. In accordance with
Fed.R.Civ.P. 25(d), this Court orders the substitution of
Lashbrook as respondent by reason of Hutchison's change
blames his appointed attorney for the failure to file a reply
brief when ordered by the Court, presumably in the central
district case, No. 96-1023. (Doc. 1, p. 7). Petitioner does
not identify a Ground One for relief, and affirmatively
states that there are no facts in support of Ground One.
(Doc. 1, p. 8). Likewise, Petitioner does not identify a
Ground Two, but refers to his exhibits when asked about facts
that support Ground Two. (Doc. 1, p. 10). Petitioner also
fails to identify a Ground Three or Four, but again refers
back to his exhibits. (Doc. 1, pp. 12-15). Petitioner also
alleges that he received ineffective assistance of counsel
and that his counsel had a conflict of interest. (Doc. 1, p.
16). He does not identify which proceeding produced that
exhibits consist of a 166 page selection of orders and
filings from his other post-conviction and habeas cases.
(Doc. 1-1). Although they are repetitive and not logically
ordered, it appears that in petitioner's previous habeas
cases he raised the following issues: 1) the statute of
limitations had run on the underlying felony, making his
conviction for felony murder void; 2) petitioner had received
an offer of immunity, which he accepted; 3) post-conviction
counsel had a conflict of interest; 4) trial counsel had a
conflict of interest; 5) the prosecutor mislead members of
the grand jury when securing the indictment; 6) the state
statute authorizing life imprisonment for felony murder is
unconstitutional and the trial court erred in imposing that
sentence; 7) the trial judge acted improperly regarding a
motion for substitution filed in the trial court. (Doc. 1-1).
also filed an “Exhibit E, ” an additional 109
pages, on January 3, 2017. (Doc. 4). Specifically, petitioner
argues that 1) the state's attorney offered him immunity
prior to his indictment; 2) results from a polygraph test
were improperly admitted in the grand jury proceeding; 3) his
post-conviction attorney, William Yoder, developed a conflict
of interest during the proceedings; 4) the state court
improperly applied a rule of statutory construction in
deciding that the armed robbery statute of limitations did
not apply to a charge of felony murder based on the
underlying armed robbery in violation of the due process
clause and the equal protection clause; 5) Margaret
Wilson's statements were improperly admitted to the grand
jury; 6) trial counsel had a conflict of interest and did not
adequately protect Petitioner's right to a speedy trial
and failed to adequately raise the statute of limitations
issue; 7) the trial court improperly admitted the testimony
of his co-defendant; 8) the trial judge erred on several
grounds during sentencing; 9) trial judge erred in not
recusing himself; 10) the indictment itself was
unconstitutional. (Doc. 4). It is not clear what the exact
composition of Exhibit E is; many of the documents make
arguments that start in the middle of sentences, and others
have dates or requests for relief inconsistent with these
proceedings, that suggest they are exhibits and not argument.
58 of that exhibit, petitioner appears to address the Court
directly in this proceeding and argues: 1) trial attorney was
incompetent for failing to object to an unconstitutional
state statute; 2) his post-conviction attorney had a conflict
of interest; 3) trial attorney failed to impeach a state
witness that committed perjury; 4) trial attorney failed to
argue that there was a Brady violation; 5) trial
attorney failed to argue that there was a Baston
violation; 6) trial attorney failed to argue that
petitioner's conviction violated the double jeopardy
clause; 7) trial attorney failed to raise petitioner's
immunity letter; and 8) trial attorney failed to object to
the state introducing a weapon that was not the murder
weapon. (Doc. 4, pp. 58-59).
petitioner filed a 25 page “Exhibit L” on January
19, 2017. (Doc. 7). That document asks the Court to consider
the exhibit, and direct the state circuit courts to hear
Petitioner's request for relief. That is not relief that
is available under § 2254, and so that request is
denied. The remainder ...